A new guide from SMI Adviser explains what to expect and what you can do if a family member who has serious mental illness (SMI) is arrested or incarcerated.

Mental Health and the Criminal Justice System: A Guide for Individuals and Families, covers what happens after arrest, during incarceration, and after release from incarceration.

An estimated two in five people who are incarcerated have a history of mental illness. This includes 37% of those in state and federal prisons and 44% of those held in local jails. Among people who are incarcerated, about one in four have a history of depression; one in five have a history of bipolar disorder; and about one in 10 have a history of schizophrenia.

It's important to note that local circumstances can vary quite a bit from community to community. Many communities have programs and services to help people who have SMI when they interact with the criminal justice system. For example, some communities have crisis intervention teams (CIT) or other specialized responses. These teams may involve law enforcement officers who have specialized training. They may even include trained mental health professionals. The teams work to diffuse situations and help individuals access treatment rather than face arrest.

In general, when an individual is arrested they are usually held in a local jail or law enforcement facility to await arraignment in court. This may occur within a few hours or up to 72 hours after arrest. Family members can attend the arraignment hearing. They can share information about the individual’s medical and psychiatric history. The guide suggests that family members ask the individual’s clinician to contact the jail staff or medical personnel with information on diagnosis and medication. As with medical care, mental health care is constitutionally guaranteed during incarceration.

“It can be traumatic and stigmatizing to be arrested or jailed. Family and social support are crucial to improved outcomes. Hopeful, nonjudgmental conversations can occur at any point in the process."

SMI Adviser Guide: Mental Health in the Criminal Justice System

After arrest, in some areas, prosecutors can offer a diversion program. In these programs, individuals who have SMI may have a choice to enter a treatment program. They must agree to certain requirements, rather than proceed through the criminal justice system. The guide helps family members identify when and how they may be able to ask for diversion to mental health treatment. It also offers advice on how to support and advocate for a loved one throughout the process. (See more on diversion.)

An individual may experience acute symptoms that interfere with their ability to participate in the system. At that point, they may undergo a court-ordered evaluation. This would determine their competency to stand trial. If needed, a judge can order restoration treatment to help the individual stabilize enough to participate in the process.

If convicted, many communities offer jail diversion or “alternatives to incarceration.” This can include probation which consists of participation in a mental health, drug, or veterans’ treatment court program. These specialty courts allow for deferred adjudication. This means that the outcome of the case is put on hold. Charges may be dismissed if a person successfully completes treatment and program requirements.

What Can Family Members Do to Help?

Here are some suggestions from the guide for how family members can support and advocate at several points within the legal process.

• During pretrial phase
  • During this time, you may be able to arrange for the current mental health clinician to discuss treatment with the jail healthcare staff. The attorney who represents the individual can sometimes coordinate this.
  • If awaiting trial, create a plan to manage mental health in the event of a jail or prison sentence.
• During incarceration
  • Alert jail staff if you suspect your family member is suicidal or has expressed suicidal
    feelings.
  • Encourage your family member to use the jail’s process for a mental health crisis. During the intake screening and evaluation, someone should describe this process.
  • Identify other areas of support in the jail or prison environment: chaplains, support groups, and educational resources.
• After release from incarceration
  • Find out when reentry planning will occur prior to release.
  • If a program for reentry exists in your community, seek resources or options to help fill any gaps. If no program exists in your community, develop a plan for reentry.
  • Stigma of arrest and incarceration can make it tough to return to social situations, such as family gatherings. You can support other family members if they have concerns about interacting with someone who’s been incarcerated. Yet don’t force engagement if it's not wanted by all parties.
  • Be mindful that new mental health symptoms can occur and that existing symptoms can sometimes get worse. The experience of arrest and incarceration can be traumatic and life changing. It may take time to process those emotions.
  • Help your loved one develop emergency plans for a crisis and continuity of care.

See more information and tips for family members in the full guide: Mental Health in the Criminal Justice System: A Guide for Individuals and Families

SMI Adviser is funded by the Substance Abuse and Mental Health Service Administration (SAMHSA) and administered by the American Psychiatric Association (APA).

Funding for SMI Adviser was made possible by Grant No. SM080818 from SAMHSA of the U.S. Department of Health and Human Services (HHS). The contents are those of the author(s) and do not necessarily represent the official views of, nor an endorsement by, SAMHSA/HHS or the U.S. Government.